Huffman v. Johnson

72 S.E.2d 236 (1952) 236 N.C. 225

HUFFMAN et al.
v.
JOHNSON et al.

No. 99.

Supreme Court of North Carolina.

September 24, 1952.

Bernard and Parker, and J. Y. Jordan, Jr., Asheville, for plaintiffs, appellants.

Sam M. Cathey, James S. Howell, and Oscar Stanton, Asheville, for defendants, appellees.

VALENTINE, Justice.

The taproot of plaintiffs' case is nestled in the allegation that defendants have violated the restictive covenants of Lake View Park by converting their residence into and maintaining it as an apartment house. Conceding without deciding that the restrictive covenants of Lake View Park are subsisting and binding upon the defendants, this single question is presented for decision here: Is the evidence in the record, taken as true and liberally construed in favor of the plaintiffs, sufficient to take the case to the jury upon the issues properly raised?

In order for plaintiffs to make good their allegation, they must offer evidence tending to show that the defendants have so altered their residence as to convert it into an apartment house within the meaning of that term.

The definition of an "apartment house" varies somewhat depending upon the surrounding circumstances, but that term invariably connotes a house constructed with separate apartments for more than one family or at least a house that is constructed larger than necessary for one family and suitable for occupancy and independent housekeeping by more than one family. 3 C.J.S., Apartment, page 1422, and cases there cited. It has been uniformly held that an apartment house is a building used as a dwelling for several families, each living separate and apart. De Laney v. VanNess, 193 N.C. 721, 138 S.E. 28, 57 A.L.R. 238; Satterthwait v. Gibbs, 288 Pa. 428, 135 A. 862. For general annotations, see 14 A.L.R.2d 1380 et seq.

The plaintiffs' evidence tends to show that the defendants purchased Lot 531, in Block O, of Lake View Park, upon which was situate a story and a half residence with a reasonably full size basement. The basement contained a coal-burning heating plant and a garage. The first floor or main part of the residence consisted of a large living room, dining room or alcove, kitchen, bedroom, bath and patio porch on the back. The second floor or attic consisted of bedroom and bath.

Mrs. Johnson, one of the defendants, who was called as a witness for the plaintiffs, testified that when they purchased the property, the door from the basement opened into the living room above the position of the furnace in the basement, so that when the furnace was serviced, disagreeable fumes and smoke would rise up in the living room and when it rained the basement would overflow and become muddy and mud would be tracked up the steps into the main part of the house. The defendants, realizing these conditions and after examining the basement of a newer house built by one of the plaintiffs in the same block, decided to partition off the furnace in their basement, to damp-proof the walls, to cover the floor with asphalt tile, and otherwise improve the basement so that it could be used by their twelve year old son as a play room and as a place to entertain his young friends. These improvements included the installation of a shower and toilet for the convenience of their son and his friends. The defendants' son has grown to manhood and is now in the army, and soon after he went into the armed forces, someone broke in and stole a lot of things. Mrs. Johnson's husband and codefendant is a traveling man and is away from home a good part of the time. This fact and the fright of burglars caused Mrs. Johnson to feel the need of having some protection in the house. She requested a gentleman friend of the family to come and occupy the basement as a bedroom and be there for protection at night. To obviate the necessity of having a man as the only other person in the house and feeling the need of the companionship of another lady, Mrs. Johnson requested a lady friend of the family to occupy the bedroom in the garret. The gentleman who has a bedroom in the basement pays rent some of the time and the other time as compensation for his room acts as handy-man around the house, firing the furnace, keeping the plumbing and other appliances in order, mowing the lawn and keeping the grounds. The lady who occupies the bedroom in the attic pays rent ten months in the year and the other two months occupies the room rent free and cares for the house while the owners are away. There is no kitchen or other housekeeping equipment in the basement or in the attic. Both roomers take all their meals at restaurants and other places outside the residence of the defendants.

There was no evidence of sufficient housekeeping space or facilities to accommodate a family in either the basement or the attic. Indeed, all of the evidence on this subject, most of which was elicited from one of the defendants and the roomer who occupies the basement, tended to show that the house was not used by more than one family nor as an apartment house.

Accepting all of plaintiffs' evidence as true and measuring it by the yardstick of liberality required upon motions for judgment as of nonsuit, we must conclude that there is not sufficient evidence to take the case to the jury and that the judgment of nonsuit was properly entered.

The ruling of the court below is

Affirmed.